Law Office of Irwin M. Avelino

H1B Visa/Status Process

H1B StatusH1b_visa_working_permit_Immigration_Attorney_Lawyer_Avelino_Los_Angeles/Visa: Illustrative Example

Christine entered the U.S. from her home country on a tourist visa with her husband and children.  After a few months of touring the U.S. and visiting relatives, her cousin informed Christine that the accounting firm he worked for was in need of another skilled accountant (accountants are generally held to be an H1b specialty occupation).

Her cousin thought she would be a good fit since Christine had a Bachelor’s degree in accounting and his employer needed someone with her credentials and was unable to fill the position.

Excited about the prospect, Christine was interviewed by the accounting firm.  The firm really liked Christine and her qualifications for the accountant position and told her they would would be willing to file an H1b petition on her behalf.

First, Attorney Avelino informed Christine that it was good that she did not try and find employment until at least 60 days had past from her date of entry as a tourist.  Because if she would have tried to find employment earlier, immigration might presume she had a hidden preconceived intent to find work when she was supposed to be entering the U.S. for tourist purposes only.  Such actions could be grounds for denial of any change of status and revocation of her tourist visa.

Attorney Avelino then advised that the case would likely be approved since the accounting firm has a bona fide need for a professional accountant and that Christine had the required qualifications for the job.  Furthermore, the accounting firm was willing to file the H1b I-129, Petition for a Nonimmigrant Worker and abide by all the regulations set forth by the U.S. Department of Labor and USCIS. In addition, Christine’s spouse and children could concurrently file I-539, Application to Change Nonimmigrant Status from B-2 to H4.

A couple months later, the petition was approved and Christine’s status changed from B-2 Tourist to H1b temporary worker.  Her family’s status changed to H4 dependent status.  Christine can now legally work for the accounting firm under H1b status.

If Christine and her employer later decide they would like her to permanently work for the accounting firm, they can begin the employment based green card process (permanent residence) for her and her family.

The H1B process involves two steps.

First, the employer submits a labor condition application (LCA) to the U.S. Department of Labor (DOL) for certification. Second, the employer files a nonimmigrant visa petition with U.S. Citizenship and Immigration Services (USCIS) to obtain H1B classification for the alien.

If the alien is already in the United States in another status, an application for a change of status can be made simultaneously with the petition. If the alien is in the United States in H1B status working for another employer, a change of employer/extension of stay application may be filed simultaneously with the petition.

Step 1: Filing the LCA

By filing the LCA with DOL, the employer is attesting to the following:

  1. That for the entire period of authorized employment (typically, three years), the company will pay all H1B alien(s) who have similar experience and qualifications for the specific position set forth on the LCA, at least the higher of:
    1. the actual wage rate paid by the employer to all other individuals with similar experience and qualifications to the H1B nonimmigrant for the specific position at the work site; or
    2. the prevailing wage level for that specific occupational classification paid by all employers in the geographic area of intended employment. We will assist in obtaining a prevailing wage for the position, either through DOL’s online wage listings, a published wage survey, or the State Workforce Agency (SWA). One advantage to obtaining a SWA determination is that DOL will accept such a determination as per se correct and will not investigate a prevailing wage complaint.

The higher of the actual or prevailing wage is the “required wage” that must be paid to the alien. Note that if the employee is not performing work and is in a nonproductive status due to a decision by the employer (e.g., for lack of work), the employer must continue to pay the employee the required wage. Unpaid leave is permissible if the leave is unrelated to employment (e.g., maternity or family leave, etc.), and U.S. workers would not be paid under similar circumstances.

  1. That for the entire period of authorized employment, the employment of the H1B alien will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
  2. That on the date the LCA is signed and submitted, there is not a strike, lockout, or work stoppage in the course of a labor dispute in the relevant occupation at the place of employment, and if such a strike occurs, the employer will notify DOL within three days.
  3. That on or within 30 days before the date of the filing the LCA, notice of the application was posted for 10 days in two conspicuous places at the worksite (e.g., where other federal or state notices are posted). Electronic posting (such as e-mail or intranet) is permissible where all worksite employees have access to the posting. If the H1B worker will be working at a third party location, posting will have to be made at that location. Please call us if this is the case. If a collective bargaining agreement applies to the position, notice must be provided to the collective bargaining representative in lieu of posting.

In addition, a copy of the LCA certified by DOL must be provided directly to the alien prior to beginning the H1B employment.

The LCA procedure is primarily complaint‑driven—an LCA investigation will normally occur only if a complaint is filed. In that case, DOL will investigate, and in the event of an LCA violation, DOL may: (1) impose a fine of $1,000 to $35,000 per violation; (2) bar the employer from obtaining future visas for a period of at least one year or up to three years; and (3) order the employer to provide for payment of back wages. Material misrepresentation on the LCA can also subject the signatory to penalties for perjury, including fines and even incarceration.

If your company has onsite contract workers who are employed by an “H1B dependent” employer (described below), the employer of such workers may ask whether your company has laid off similarly employed U.S. workers 90 days prior to the worker being at your work site and whether you do not intend to lay off U.S. workers within 90 days after the worker is at your site. Thus, layoffs at your company may affect your ability to keep some contract employees at your work site.

Benefits Obligations

Benefits and eligibility for benefits (e.g., bonuses, stock options, vacations, insurance, retirement plans) must be offered to H1B nonimmigrant workers on the same basis as the employer offers to U.S. workers. H1B workers cannot be denied benefits because they are “temporary employees.” Other distinctions, not based on H1B status, are allowed as long as U.S. workers are treated in the same manner—e.g., full-time vs. part-time employees or professional vs. non–professional staff. Multinational employers may leave H1B workers on their “home country” benefits plan under certain circumstances.

H1B Dependent Employer Requirements

An “H1B dependent” employer is one that has a high percentage of H1B employees. Please let us know immediately if 15 percent or more of your workforce are H1B workers. Additional requirements for H1B dependent employers include, under certain circumstances, attempted recruitment of U.S. workers, a prohibition against displacement of a U.S. worker by an H1B worker, and a prohibition against placement of an H1B worker at another employer without first asking about the other employer’s possible displacement of U.S. workers.

Satisfying Documentation Requirements

Within one working day of the filing of the LCA, your company must make certain documentation regarding the LCA available for public inspection by any person. We will prepare an LCA “Public Access” file for the company. This file must be retained for one year beyond the validity period of the LCA. The public access file should contain:

  1. Completed LCA (Form ETA 9035) and cover pages (Form ETA 9035CP).
  2. Wage Rate, i.e., the wage paid to the foreign national(s) utilizing the LCA.
  3. Actual Wage Memorandum. This memorandum must summarize the system used to set the wage the employer has paid or will pay its workers in the same occupation.
  4. Copy of the documentation the employer used to determine the “prevailing wage.” This should consist of a copy of the SWA Prevailing Wage determination or the survey used to determine the prevailing wage.
  5. Evidence of posting or notification to bargaining representative. We will prepare a Posting Notice for a company representative to complete to satisfy the posting requirement.
  6. Summary of benefits offered to U.S. workers in same occupational class. Where there are different formulas for calculating benefits, the employer must also include a statement explaining such differentiation.

In the event of a corporate reorganization (e.g., merger, acquisition, etc.), the public access file must also include:

  1. Sworn statement by responsible official that the new entity accepts all obligations, liabilities, and undertakings under LCAs filed by predecessor.
  2. List of each affected LCA and date of certification.
  3. Actual wage memorandum of new entity.
  4. EIN of new entity.

If the employer is a “single employer” as that term is defined by the Internal Revenue Code, the public access file must also include the following:

  1. List of entities included as part of the single employer in making H1B dependency determination.

In addition to the public access documentation, the company must maintain certain records for DOL to review in the event of a complaint. These records include payroll records for a period of three years from the date of the creation of the records, a description of the company’s benefits plan, dependency calculation records, records of hours worked by hourly and part-time H1B workers, prevailing and actual wage sources, information regarding working conditions, and copies of USCIS petitions. There are additional record-keeping requirements for H1B dependent employers.

The H1B Petition

Once the LCA has been certified, we will prepare the H1B petition for signature by the company representative. The H1B petition may then be filed with USCIS. In each U.S. fiscal year beginning on October 1, H1B petitions may only be approved for 65,000 new H1B workers, with an additional 20,000 available for individuals who have earned a master’s degree or higher from a U.S. university. Once the “caps” of 65,000, or the additional 20,000, have been reached, USCIS will not approve petitions for a start date before the next October 1. This limit only applies to individuals who have not been granted or held H1B classification in the previous 12 months.

The USCIS filing fee for the petition is at the time of this writing $325.00. In addition, USCIS imposes a $1,500 fee that will go to a “training fund” for U.S. workers. (The fee is $750 for employers with 25 or fewer employees. An employer that is a primary, secondary, or higher educational institution or a related nonprofit entity or nonprofit research organization is exempt from this fee. Please let us know if any of these apply to your company.) The alien may not pay this worker training fee. Finally, USCIS imposes an additional fee of $500 as an “anti-fraud” fee on the first H1B filing by an employer on behalf of a given employee. The H1B petition will consist of Forms I-129H, I-129W, a company letter of support outlining the proposed position duties and requirements, and supporting documentation including information about the company’s ability to pay the offered wage. “Premium” (two-week) processing is available for an additional USCIS filing fee presently at the time of this writing at $1,225 .

H1B nonimmigrant visa classification has two major requirements: (1) that the position to be filled is a “specialty occupation,” i.e., an occupation requiring the theoretical and practical application of a highly specialized body of knowledge, and for which attainment of a U.S. bachelor’s degree or higher in a specialized field is the minimum requirement for entry into the occupation; and (2) that the alien possesses a U.S. bachelor’s degree or higher in the specialized field. (Note that if the individual does not have a degree, or possesses a foreign degree, an education and/or experience evaluation will be required to determine equivalence to a U.S. degree.)

Where the petition requests a change of employer for an individual already in valid H1B classification, the employee may begin working for the new employer once a certified LCA is in place and upon filing of the new employer’s H1B petition with USCIS if the following conditions are met: (a) the employee was lawfully admitted into the United States; (b) the alien has not worked without authorization since last entry; and (c) the “non-frivolous” petition is filed before expiration of the employee’s authorized stay.

For petitions requesting a change of status from another nonimmigrant classification, the company may begin to employ the alien in H1B classification once the petition is approved and becomes effective. If the alien is outside the United States, he or she will need to obtain an H1B visa  at a U.S. embassy or consular post abroad in order the enter the United States. Similarly, if the alien is in the United States but then travels internationally, he or she will likely need to obtain an H1B visa prior to re-entering the United States. Please contact us if you would like assistance with the H1B visa application. Please note that Canadians granted H1B status do not require H1B visas for entry to the United States. However, Canadian with H1B status should always carry the original I-94 found at the bottom of the original H1B approval notice.

The employer must begin to pay an H1B employee when he or she “enters into employment,” i.e., when he or she is available to work and comes under control of employer. In any event, the employee must be placed on the payroll no later than 30 days after he or she enters the United States under the approved H1B, or if already in the United States, 60 days after the start date on the H1B petition or the date of the change of status by USCIS, whichever is later.

Under current regulations, in the event the company dismisses the alien from employment before the end of the period of authorized admission, the company is liable for the reasonable costs of return transportation to the alien’s residence abroad.

The LCA, H1B petition, and prevailing wage information are valid for up to three years. The company should docket six months prior to the expiration of the H1B petition to decide if it would like to obtain an extension of the LCA and H1B petition for an additional three years. (We will also docket this date.)  If the company plans to continue to employ the H1B employee beyond the initial three-year period, the company should arrange to file an extension of the H1B petition at that time to ensure that the extension is approved prior to the expiration of the initial petition.

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